S 241.Findings and purpose. This act declares that minors who are the
subject of family court proceedings or appeals in proceedings
originating in the family court should be represented by counsel of
their own choosing or by assigned counsel. This declaration is based on
a finding that counsel is often indispensable to a practical realization
of due process of law and may be helpful in making reasoned
determinations of fact and proper orders of disposition. This part
establishes a system of attorneys for children who often require the
assistance of counsel to help protect their interests and to help them
express their wishes to the court. Nothing in this act is intended to
preclude any other interested person from appearing by counsel.
S 242.Attorney for the child. As used in this act, "attorney for the
child" refers to an attorney admitted to practice law in the state of
New York and designated under this part to represent minors pursuant to
section two hundred forty-nine of this act.
S 243.Designation. (a) The office of court administration may enter
into an agreement with a legal aid society for the society to provide
attorneys to represent children in the family court or appeals in
proceedings originating in the family court in a county having a legal
aid society.
(b) The appellate division of the supreme court for the judicial
department in which a county is located may, upon determining that a
county panel designated pursuant to subdivision (c) of this section is
not sufficient to afford appropriate services of attorneys for children,
enter into an agreement, subject to regulations as may be promulgated by
the administrative board of the courts, with any qualified attorney or
attorneys to serve as attorneys for children for the family court or
appeals in proceedings originating in the family court in that county.
(c) The appellate division of the supreme court for the judicial
department in which a county is located may designate a panel of
attorneys for children for the family court and appeals in proceedings
originating in the family court in that county, subject to the approval
of the administrative board of the courts. For this purpose, such
appellate division may invite a bar association to recommend qualified
persons for consideration by the appellate division in making its
designation, subject to standards as may be promulgated by such
administrative board.
S 244.Duration of designation. (a) An agreement pursuant to
subdivision (a) of section two hundred forty-three of this chapter may
be terminated by the office of court administration by serving notice on
the society sixty days prior to the effective date of the termination.
(b) No designations pursuant to subdivision (c) of section two hundred
forty-three may be for a term of more than one year, but successive
designations may be made. The appellate division proceeding pursuant to
subdivision (c) of section two hundred forty-three, may at any time
increase or decrease the number of attorneys for children designated in
any county and may rescind any designation at any time, subject to the
approval of the office of court administration.
(c) may at any time increase or decrease the number of law guardians
designated in any county and may rescind any designation at any time,
subject to the approval of the office of court administration.
S 245.Compensation. (a) If the office of court administration
proceeds pursuant to subdivision (a) of section two hundred forty-three
of this chapter, the agreement shall provide that the society shall be
reimbursed on a cost basis for services rendered under the agreement.
The agreement shall contain a general plan for the organization and
operation of the program for the provision of attorneys for children by
the respective legal aid society, approved by the administrative board,
and the office of court administration may require such reports as it
deems necessary from the society.
(b) If an appellate division proceeds pursuant to subdivision (b) of
such section two hundred forty-three, the agreement may provide that the
attorney or attorneys shall be reimbursed on a cost basis for services
rendered under the agreement. The agreement shall contain a general plan
for the organization and operation of the program for the provision of
attorneys for children by the respective attorney or attorneys, and the
appellate division may require such reports as it deems necessary from
the attorney or attorneys.
(c) If an appellate division proceeds pursuant to subdivision (c) of
such section two hundred forty-three, attorneys for children shall be
compensated and allowed expenses and disbursements in the same amounts
established by subdivision three of section thirty-five of the judiciary
law.
S 246.Supervision by administrative board. The administrative board
of the judicial conference may prescribe standards for the exercise of
the powers granted to the appellate divisions under this part and may
require such reports as it deems desirable.
S 248.Appropriations. The costs of attorneys for children under
section two hundred forty-five shall be payable by the state of New York
within the amounts appropriated therefor.
S 249.Appointment of attorney for child. * (a) In a proceeding under
article three, seven, ten, ten-A or ten-C of this act or where a
revocation of an adoption consent is opposed under section one hundred
fifteen-b of the domestic relations law or in any proceeding under
section three hundred fifty-eight-a, three hundred eighty-three-c, three
hundred eighty-four or three hundred eighty-four-b of the social
services law or when a minor is sought to be placed in protective
custody under section one hundred fifty-eight of this act or in any
proceeding where a minor is detained under or governed by the interstate
compact for juveniles established pursuant to section five hundred one-e
of the executive law, the family court shall appoint an attorney to
represent a minor who is the subject of the proceeding or who is sought
to be placed in protective custody, if independent legal representation
is not available to such minor. In any proceeding to extend or continue
the placement of a juvenile delinquent or person in need of supervision
pursuant to section seven hundred fifty-six or 353.3 of this act or any
proceeding to extend or continue a commitment to the custody of the
commissioner of mental health or the commissioner of people with
developmental disabilities pursuant to section 322.2 of this act, the
court shall not permit the respondent to waive the right to be
represented by counsel chosen by the respondent, respondent's parent, or
other person legally responsible for the respondent's care, or by
assigned counsel. In any proceeding under article ten-B of this act, the
family court shall appoint an attorney to represent a youth, under the
age of twenty-one, who is the subject of the proceeding, if independent
legal representation is not available to such youth. In any other
proceeding in which the court has jurisdiction, the court may appoint an
attorney to represent the child, when, in the opinion of the family
court judge, such representation will serve the purposes of this act, if
independent legal counsel is not available to the child. The family
court on its own motion may make such appointment.
* NB Effective until September 1, 2020
* (a) In a proceeding under article three, seven, ten, ten-A or ten-C
of this act or where a revocation of an adoption consent is opposed
under section one hundred fifteen-b of the domestic relations law or in
any proceeding under section three hundred fifty-eight-a, three hundred
eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
of the social services law or when a minor is sought to be placed in
protective custody under section one hundred fifty-eight of this act,
the family court shall appoint an attorney to represent a minor who is
the subject of the proceeding or who is sought to be placed in
protective custody, if independent legal representation is not available
to such minor. In any proceeding to extend or continue the placement of
a juvenile delinquent or person in need of supervision pursuant to
section seven hundred fifty-six or 353.3 of this act or any proceeding
to extend or continue a commitment to the custody of the commissioner of
mental health or the commissioner of mental retardation and
developmental disabilities pursuant to section 322.2 of this act, the
court shall not permit the respondent to waive the right to be
represented by counsel chosen by the respondent, respondent's parent, or
other person legally responsible for the respondent's care, or by
assigned counsel. In any proceeding under article ten-B of this act, the
family court shall appoint an attorney to represent a youth, under the
age of twenty-one, who is the subject of the proceeding, if independent
legal representation is not available to such youth. In any other
proceeding in which the court has jurisdiction, the court may appoint an
attorney to represent the child, when, in the opinion of the family
court judge, such representation will serve the purposes of this act, if
independent legal counsel is not available to the child. The family
court on its own motion may make such appointment.
* NB Effective September 1, 2020
(b) In making an appointment of an attorney for a child pursuant to
this section, the court shall, to the extent practicable and
appropriate, appoint the same attorney who has previously represented
the child. Notwithstanding any other provision of law, in a proceeding
under article three of this act following an order of removal made
pursuant to article seven hundred twenty-five of the criminal procedure
law, the court shall, wherever practicable, appoint the same counsel who
represented the juvenile offender in the criminal proceedings.
* S 249-A. Waiver of counsel. A minor who is a subject of a juvenile
delinquency or person in need of supervision proceeding or in any
proceeding where a minor is detained under or governed by the interstate
compact for juveniles established pursuant to section five hundred one-e
of the executive law shall be presumed to lack the requisite knowledge
and maturity to waive the appointment of an attorney. This presumption
may be rebutted only after an attorney has been appointed and the court
determines after a hearing at which the attorney appears and
participates and upon clear and convincing evidence that (a) the minor
understands the nature of the charges, the possible dispositional
alternatives and the possible defenses to the charges, (b) the minor
possesses the maturity, knowledge and intelligence necessary to conduct
his or her own defense, and (c) waiver is in the best interest of the
minor.
* NB Effective until September 1, 2020
* S 249-a. Waiver of counsel. A minor who is a subject of a juvenile
delinquency or person in need of supervision proceeding shall be
presumed to lack the requisite knowledge and maturity to waive the
appointment of an attorney. This presumption may be rebutted only after
an attorney has been appointed and the court determines after a hearing
at which the attorney appears and participates and upon clear and
convincing evidence that (a) the minor understands the nature of the
charges, the possible dispositional alternatives and the possible
defenses to the charges, (b) the minor possesses the maturity, knowledge
and intelligence necessary to conduct his or her own defense, and (c)
waiver is in the best interest of the minor.
* NB Effective September 1, 2020
S 249-B.Rules of court. (a) The chief administrator of the courts,
pursuant to paragraph (e) of subdivision two of section two hundred
twelve of the judiciary law, shall promulgate court rules for attorneys
for children. Such court rules shall:
1. prescribe workload standards for attorneys for children, including
maximum numbers of children who can be represented at any given time, in
order to ensure that children receive effective assistance of counsel
comporting with legal and ethical mandates, the complexity of the
proceedings affecting each client to which the attorney is assigned, and
the nature of the court appearance likely to be required for each
individual client; and
2. provide for the development of training programs with the input of
and in consultation with the state office for the prevention of domestic
violence. Such training programs must include the dynamics of domestic
violence and its effect on victims and on children, and the relationship
between such dynamics and the issues considered by the court, including,
but not limited to, custody, visitation and child support. Such training
programs along with the providers of such training must be approved by
the office of court administration following consultation with and input
from the state office for the prevention of domestic violence; and
3. require that all attorneys for children, including new and veteran
attorneys, receive initial and ongoing training as provided for in this
section.
(b) Appointments of attorneys for children under section two hundred
forty-nine of this part shall be in conformity with the rules.
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